Category Archives: Criminal Defense

Crimes involving intentional harm to another person can be classed as assault, assault and battery and aggravated assault. Depending on the seriousness of the situation this may rise to aggravated assault. even mutually agreed fighting can constitute assault. Read on to learn more.

What Is Assault?

Assault is the intentional act causing a person to fear they are about to suffer physical harm. It also recognizes placing another person in fear of imminent bodily harm is itself an act deserving of punishment. This definition also allows police officers to intervene and make an arrest without waiting for the assaulter to physically strike the victim.

What Is Assault and Battery?

Battery and assault were once considered separate crimes. Many modern statutes do not distinguish between the two crimes. These days, statutes often refer to crimes of actual physical violence as assaults.

Simple Versus Aggravated Assault

Many states say assaults fall into one of two categories, simple or aggravated. The latter is a felony involving an assault with the intent to commit a serious crime or with a weapon. When these factors are not at play, the crime tends to be assault, which is a misdemeanor. There are states recognizing different degrees of harm and classifying them as first, second and third degree assaults.

Source: https://www.nolo.com/legal-encyclopedia/assault-battery-aggravated-assault-33775.html

The penalties and sentences for an assault and/or battery conviction can vary widely depending on the law of the state where the offense was committed. Read on to learn more.

Normally, an assault involves threats of bodily harm. It doesn’t require actual contact, but the person threatened must  believe it is a credible threat.

The crime of battery usually involves intentional and unwanted physical contact, even if the intent wasn’t to actually cause harm.

Most states treat assault and battery as two separate crimes, not all states do. For instance, Texas makes no distinction between the two.

Penalties for an Assault Charge

The seriousness of the threat and associated circumstances will make the assault charge a felony or a misdemeanor. For example, federal law divides assault into a felony punishable by 10 years imprisonment and a misdemeanor punishable by one year imprisonment. Along the same lines, the states divide assault into misdemeanors and felonies. A misdemeanor carries a potential jail term of less than one year. Felonies are subject to imprisonment for more than twelve months.

Penalties for a Battery Charge

Just like assault, battery can be considered a misdemeanor or a felony. The distinction between the two classifications depends on the seriousness of the injury, whether a weapon was used, and the person who was injured. State and federal laws provide for more serious punishments when the victim is a peace officer, fireman, or a member of the legislature, executive or judicial branch of government.

Aggravated Assault/Battery

The potential penalties rise dramatically for aggravated assault because it constitutes a felony in all states. The crime of assault and/or battery becomes an aggravated assault / battery based on whether:

• A deadly weapon was used;
• The status of the victim is a protected class;
• The perpetrator’s intent; or
• The seriousness of the injury.

The type of weapon used makes a difference in the assault and battery penalties that will be assessed. While states like Michigan do not single out particular weapons for different treatment, states like California do as California has specified different punishments for different types of weapons. Similarly, laws may carry harsher penalties for assaults or batteries committed against family members or others living with the offender, or such crimes may be prosecuted under domestic abuse or violence laws.

Aggravated Assault in Arizona

The Aggravated Assault statute in Arizona is long and complex. The punishments can vary from 1.5 years to 25 years in prison, or more in some cases where the circumstances call for it.

Source: https://criminal.findlaw.com/criminal-charges/assault-and-battery-penalties-and-sentencing.html

Assault is a violent crime defined differently by individual states. Read on to learn more.

Physical Assault & Attempted Insult

Some states say assault is the intentional use of force or violence against another. Under this approach, an “attempted assault” is an act that intends to physically harm the victim, but fails or falls short. In other states, assault does not involve actual physical contact, and is defined as an attempt to commit a physical attack, or as threatening actions. In these states, when the attempt succeeds, the resulting crime is a battery. Under this approach, there is no such crime as an “attempted assault.” Verbal threats are usually not enough to constitute an assault. Some action such as raising a fist or moving menacingly toward a victim usually is required.

The Victim’s Fear

Some states define assault as placing a victim in fear of violence. The standard test is if the defendant’s actions would cause a reasonable person to be in fear of an immediate physical attack. 

Simple and Aggravated Assault

Simple assault involves minor injury or a limited threat of violence. Aggravated assault means the crime is more serious, as when the victim is threatened with or experiences more than minimal physical violence’

Deadly Weapon

An aggravated assault means the offender has used a deadly weapon in the commission of the crime. (In some states, assault with a deadly weapon is a separate, distinct crime and not included in the crime of aggravated assault.)

An object is a deadly weapon if it likely can cause death or great bodily harm. A gun and a large knife are, by definition, deadly weapons. Other objects, such as rocks, bricks, can be considered a deadly weapon, as well.

Proving the Case and Possible Defenses

For a defendant to be convicted of aggravated assault, the prosecutor must prove every element of the crime.

• The prosecutor must prove that the defendant intentionally threatened an attack and caused the victim fear 
• Alternatively, the defendant attempted or accomplished a physical attack. The prosecutor also must prove the facts that make the assault aggravated.
• Alternatively, the victim was a member of a protected class, such as a police officer, school employee or an elderly or other vulnerable person.

Defenses

Defendants can claim they have the wrong person as well as claiming self defense or defense of others and present evidence that the alleged victim initiated the confrontation and that the defendant was defending himself. That defense may take the form of showing that a weapon actually was in the victim’s possession. It can be argued the defendant’s actions were purely accidental and that he had no criminal intent.

Penalties for Aggravated Assault

Aggravated assault is usually a felony punishable by approximately one to twenty years in prison. Normally, the judge has some discretion on the length of the sentence and whether to allow the defendant to serve any portion of the sentence on probation.

Sentence Enhancement

In some states, assault against a special victim like a police officer or elderly person carries more severe penalties or is subject to sentence enhancement, which permits the court to add extra time to the sentence for the underlying crime. In many states, there also are more severe penalties or sentencing enhancement provisions if the deadly weapon used in an assault or battery is a firearm of certain kinds.

Source

https://www.criminaldefenselawyer.com/crime-penalties/federal/Aggravated-Assault.htm

Aggravated assault is the attempt to cause what is termed serious bodily harm to another person with disregard for human life. The factors that can play into this include the status of the victim, the use of a weapon, the intent of the crime and the extent of injuries caused. Read on to learn more.

States classify certain assaults as aggravated as per their own state criminal codes. Other terms they may use, for example, may be “assault with  deadly weapon.” These are often considered felonies, while simple assaults are often considered to be misdemeanors. There are also multiple degrees of criminal charges for assault in many states.

Deadly Weapons

The use of a deadly weapon constitutes an aggravated assault regardless of whether the weapon harmed anyone. Physical harm is not always an ingredient of basic assault, but rather the perpetrator behaved in a way (for example threatening them) to make the victim fear for their safety. However, that threat can often make the assault be elevated to an aggravated assault charge because the fear factor is more harmful than a physical injury. Weapons may include guns as well as the way the yare used. A pocket knife may only be considered a lethal weapon if it used in way that can threaten the life of an individual.

Victim Identity

Depending on the status of the victim, some assaults may become aggravated, for example, those visited upon essential services personnel. This is especially so when the victim was performing their duty and the perpetrator was aware of the victims role.

Degree Of Injury

Serious injuries can cause an assault charges to be raised to that of an aggravated charge – usually injuries that will disfigure or maim the victim – though some states list certain injuries. Even if the injuries end up as minor, some states will say certain injuries fall under the aggravated assault statues. Sexual assaults are usually classed as their own form of assault but charges may include battery/assault, aggravated rape or assault an sexual assault.

Source: https://criminal.findlaw.com/criminal-charges/aggravated-assault.html

Being proactive is the key to reducing your prisoner sentence. Read on to learn more.

There are two phases of the criminal justice system, the trial and the sentencing. When someone is correctly convicted of charges against them, it is during the sentence process you can advocate for a less severe penalty. Known in most states as a “motion for modification of sentence” your attorney will file this document and the judge will set a hearing for you to make your case. The judge may require the prosecutor to sign of on a reduced sentence. it is paramount the motion is filed before your sentence is finalized.

Reduced Sentence?

Here are some thing that may assist in your case for a reduced sentence (note this is not an option in all states):

• Showing cooperation as a witness for the prosecutors by testifying against others
• Compassionate release if the convicted person is of great age or very poor health

What If The Law Or Facts Of My Case Change?

Many states are changing charge and sentencing procedures for small amounts of certain narcotics. If your new sentence is very different from your previous ones, you may petition to have it altered to reflect new guidelines. There is also the chance new evidence will exonerate or alter the way you were initially charged.

Was My Sentence Illegal?

This is not often the case. Sometimes the conviction may be valid and the sentence can be invalid – perhaps it is in excess of the criminal code. Another example would be if the procedures for plea bargaining have not been correctly observed or (and this is very rare) the court does not have jurisdiction.

Changing The Sentence

More often than not it is up to the discretion of the judge. That said, if you can demonstrate good behavior while you are incarcerated will help your situation as it will show you are not a threat to the community. Work with an attorney to get he best possible outcome for your case.

Source: https://www.legalmatch.com/law-library/article/how-to-reduce-your-criminal-sentence.html

Only a small number of cases ever go to trial. Often, plea cases are accepted whereby a defendant pleads guilty in return for a lesser offense. It is important trials follow rules that protect the rights of the defendant while maintaining the efficiency of the court system. Read on to learn more.

Voir Dare

Voir dare is the process of interviewing potential jurors. Both the defense and prosecution may question potential jurors for conflicts of interest or biases. A certain amount of “preemptory challenges” can be utilized to remove a potential juror without giving a reason though they are not allowed to discriminate on the grounds of gender, race, or ethnicity.

Opening Statements

Once in place, the jury will hear each side who want to offer an opening statement, intended as a summary of the case.

Prosecution Evidence and Witnesses

The state will first present their case. They have the burden of proof to meet all the elements of the alleged offenses. They may call witnesses and introduce other evidence to aid them in doing so.

Defense Evidence And Witnesses

The defendant can present evidence as well as witnesses as a rebuttal to the case made by the state. There is no obligation to testify and they cannot be called as a witness by the prosecution as the fifth amendment affords the privilege against self-incrimination. As prosecutors carry the burden of proof, the defendant does not have to prove their innocence. However, they may have a burden of proof, for example, if they use self-defense insanity or entrapment as a reason for their actions.

Closing Arguments

Each side can present closing arguments once the presentation of evidence has been completed. These arguments summarize their cases and can highlight flaws in the reasoning or evidence of the opponent.

Jury Charge

The judge will give instructions to the jury that may include questions regarding the charged offense. Both the defendant and the state can submit proposed jury charges to the court.

Jury Deliberations and Verdict

The jury will then retire for deliberation. On occasion, jurors may be sequestered but they are normally told not to discuss the case. If a unanimous verdict cannot be obtained, the judge may declare a mistrial.

Post-Trial Motions

When a guilty verdict has been entered by a jury, post-trial motions can be brought by the defendant such as an acquittal or motion for judgment or a new trial. The defendant may appeal if the post-trial motions are denied by the court.

Source: https://www.justia.com/criminal/procedure/stages-criminal-trial/

Felony murder is a term expanding the way murder is defined. Applied when an individual commits a type of felony and someone else dies during the course of the crime. Whether accidental or intentional, the defendant is liable for the death. Often it applies to felonies that are a danger to human life, like rape, robbery, burglary and arson. Read on to learn more.

Felony murder requires the intent to commit the underlying felony and that an individual died from the acts of the felony. if more than one person is involved in the felony, all take responsibility, including accessories.

Broad Reach

The terms of felony murder differ by state but are generally very broad by definition. it applies when:

• A bystander for law enforcement are the cause of death
• The death occurs during an escape attempt or the person who dies is an accomplice
• As intent is not an element at play, self-defense may not be permissible when dealing with cases of felony murder

These rules have frequently been criticized as punitive to those who did not take a life. for example, the driver of a getaway car where another occupant committed the murder.

Capital Punishment

The original position of the US Supreme Court was the Eight Amendment expressly prohibits capital punishment, if the defendant did not kill, or attempt to kill, and was only a minor league player but was available should there defendant have been a major participant in the crime and acted with: “reckless indifference to human life.” (Tison v. Arizona, 481 U.S. 137 (1987).) Not all states subscribe to this viewpoint and it may not be worthy of the death penalty: (See, for example, Vernon Kills On Top v. State, 279 Mont. 384 (1996).)

Federal Law

Federal law sees felony murder as first degree murder and lists felonies forming the basis for prosecution:

• arson
• burglary
• child abuse
• escape
• espionage
• kidnapping
• murder
• sabotage
• sexual abuse
• treason

State Law

Some states no longer have felony murder on their books. Some states consider it to be first degree murder, in others it is second degree murder. There are many factors determining how states apply felony murder rules.

Predicate Felonies

States can make a determination what qualifies as predicate felonies. Many states say even attempts can bring the felony murder rule into play. Some states say all the facts surrounding the crime are relevant, while others look at the felony, without considering the outstanding surrounding facts.

Time Of Death

Some states limit felony murder when death occurs as part of the underlying felony.

Accomplices

Every state has individual rules they apply to accomplices. Most states use an “agency” approach whereby felony murder will only apply when the defendant or their “agent” has responsibility for the death. Some states adopt a “proximate cause” approach, whereby, felony murder can be applied when any death occurs from the felony, regardless of who caused it.

Causation

Every estate says the underlying felony be the “but for” cause of death. For example, someone may die as a result of a robbery but some states also require the felony to be the immediate and primary cause of death.

Source: https://www.criminaldefenselawyer.com/resources/felony-murder.htm

A felony is normally considered to be a crime with a a penalty of more than one year in prison. Often crimes with violence or that are debasing to society are included such as arson and murder in the first degree. Lesser crimes are usually citations or misdemeanors. Read on to learn more.

Differences

Felony crimes are taken more seriously and have more severe penalties than misdemeanors. A misdemeanor may result in fines and a prison term of less than a year. But a felony may result in a prison term in excess of twelve months and far greater terms. There are also wobblers…a crime that may be either and a combination of fines and prison time may apply.

Felony Classes

Every state has their own statute for felony crimes classes. Many states say a Class 1 or Class A felony will be reserved for the most severe of cases. They then proceed to Class B or Class 2 and so on in a similar manner as the crimes lessen in their severity and punishment.

Felony Charges

Here is a list of common felony charges:

• Property crimes: Grand theft, arson, and vandalism.
• Drug offenses: Distributing, selling, or trafficking drugs.
• Sex crimes: Sexual assault and human trafficking.
• Violent offenses: First-degree murder, second-degree murder, and robbery.
• White collar crimes: Embezzlement, securities fraud, and tax evasion.

Felony Sentencing Structures

A felony sentence is likely to be harsher if the offender already has a record and harmed another person while committing their crime. A successful defense can reduce a sentence. The state as well as the kind of crime also is taken into account. When there are no factors considered aggravating it may be argued the sentence should be similar to a misdemeanor. There may also be a civil lawsuit to contend with. That said, if it can be demonstrated the defendant was acting in self defense, then the civil penalties may be stropped or at the very least, reduced.

Felony Expungement

It is very tough to get a felony expunged, especially if the crime was a serious nature. It may be possible if the defendant was a child when the crime was committed depending on time factors and the nature of the crime as well as the completion of any court ordered programs. The difference between being arrested and charged for a felony means the suspect when arrested is there based on the belief they have committed a felony. A felony charge means a legal proceeding has been initiated against the individual. Usually a felony remains with a person forever. This may make it tough to find employment, obtain rights of custody over children as well as losing the right to vote.

Facing Felony Charges

You will want to think about hiring an experienced criminal defense attorney. They can understand state laws in reference to your situation and work to get the best possible outcome for your case.

Source: www.legalmatch.com/law-library/article/what-is-a-felony.html

All states divide felonies into categories. Some states like South Dakota, Colorado, Virginia and Arizona have at least six different felony classes ranging in seriousness from Class 1 to Class 6. Examples of class 6 felonies nationwide would include:

• Possession of up to 2 ounces of methamphetamines – Colorado
• Receipt of a stolen firearm – Virginia
• Internet gambling – South Dakota
• Recklessly handling a dangerous weapon – Arizona
• Sale of child pornography – South Dakota
• Maximum and Minimum Sentences

Read on to learn more.

A class 6 felony presumptive sentence will be similar to the minimum felony sentence – one year of prison time up to five years in some states. Fines, in the form of restitution or as additions to the prison term range from $2,500 all the way up to $100,000.

Extended Sentences

Any felony may be enhanced if there are aggravating factors at play. This will include Class 6 felonies. Any violent crime in Colorado is penalized by an enhanced sentence. In Arizona, if you have a history of two or greater prior felonies, there is a minimum sentence of three years. You can qualify for alternative or diversion sentencing options when the crime did not have a component of violence and the offender has no felony criminal history. Also in Arizona, a judge may decide to sentence a Class 6 felony as a class 1 misdemeanor. An attorney may be able to assist in minimizing or even avoiding prison time with a case dismissal possible when a diversion program or community sentencing has been successfully completed.

Loss Of Rights

Once convicted of a Class 6 felony you normally lose the following rights:

• Vote
• Qualify to run for public office
• Own or possess a firearm
• Receive permits or licenses needed for various occupations, including lawyer, accountant and many healthcare positions

Drug related crimes can also impact the ability of a person qualify for low-income housing options as well as food stamps.

Employment And Housing

A 2010 study showed 92 percent of all employers check for criminal records. A felony will make obtaining a position far more difficult and you will face similar problems obtaining housing. State labor agencies may be able to assists with lists of companies and individuals who are incentivized to hire felons or choose them as tenants.

Cleaning Your Record

Although in Arizona and South Dakota you may have your civil rights automatically restored, a felony conviction will still be a negative factor on your records. Many states have expungement laws but it is not often felony convictions are expunged. A criminal attorney can negotiate a Class 6 felony to a misdemeanor. Another way is to request a pardon from the Governor. This usually takes at least three to five years and will need a compelling reason to do so.

Source: https://www.superpages.com/em/class-6-felony